New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2002-009-41, Claim No. 98912, Motion Nos. M-64882, CM-65025


Defendant's motion to dismiss the claim for failure to timely comply with a prior order of this Court was denied, and claimant's cross-motion to modify the prior order and enlarge the time-frame in which to comply with said order was granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
BY: Daniel J. Doyle, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 24, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought a motion (M-64882) seeking an order dismissing the claim. Claimant has responded with a cross-motion (CM-65025) not only opposing the relief sought by defendant, but also seeking an order modifying a prior decision and order of this Court.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibits 1,2

Notice of Cross-Motion, Affirmation, with Exhibits 3,4

Reply Affirmation 5

Claimant originally filed a claim on September 4, 1998, seeking damages for alleged inadequate medical treatment received while he was an inmate at Auburn Correctional Facility. At the time, claimant was proceeding pro se, and a trial was ultimately commenced before my esteemed and learned colleague, Hon. Donald J. Corbett, Jr., on June 13, 2001. A mistrial was declared on that day, and Judge Corbett recommended that claimant seek immediate legal representation.

Claimant then retained counsel who brought an application seeking leave to amend the original claim, as well as seeking leave to serve and file a late claim alleging a new cause of action based upon negligence.

The application was granted by this Court and claimant was directed to serve and file an amended claim, including the new cause of action seeking damages for negligence, within 45 days from the filing date of said decision and order. In the order, claimant was expressly directed to serve the amended claim upon the Attorney General "either personally or by certified mail, return receipt requested". The decision and order was filed on December 24, 2001. Accordingly, service and filing of the amended claim had to be accomplished by February 7, 2002, the 45th day from the filing date of the decision and order.

The amended claim was filed with the Clerk of the Court of Claims on February 6, 2002, within the required 45 day period.

As set forth in defendant's moving papers (see Items 1,2), the amended claim was received by the Attorney General on February 7, 2002, via Federal Express service. Defendant claims that the claim should be dismissed because the amended claim was not timely or properly served.

Defendant contends that since the amended claim was received on the 45th day following the filing of the Court's decision and order, defendant did not receive the amended claim "within" 45 days as required by said decision and order. However, the "number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the reckoning is made." (General Construction Law, § 20, emphasis added). Clearly, therefore, the amended claim was timely served upon the Attorney General, and defendant's contention that it was not timely served is without merit.

However, the amended claim was served upon the defendant by means of Federal Express service, while the decision and order of this Court required such service to be made "either personally or by certified mail, return receipt requested". Defendant contends that since service was not properly made, jurisdiction was not obtained over the defendant on the amended claim, and it should be dismissed.

Claimant contends that since the Court of Claims Act, as well as the Uniform Rules for the Court of Claims, are both silent as to the proper procedure for the service of an amended claim, CPLR § 2103 governs such service (see, Uniform Rules for the Court of Claims, § 206.1[c]). Since jurisdiction had been acquired against the State through the proper and timely service of the original claim, claimant contends that the service of the amended claim made by Federal Express was proper, since such service is authorized by CPLR § 2103.

If this Court's order had been silent as to the method of service to be utilized for service of the amended claim, the Court would agree with claimant that service could be made by any manner authorized by CPLR § 2103. However, the prior decision and order of this Court expressly directed that service of the amended claim be made "either personally or by certified mail, return receipt requested". Claimant's failure to comply with the specific terms of the order raises the question, as contended by the State, as to whether jurisdiction against the State has been acquired over the new cause of action asserted in the amended claim.

In its consideration of this issue, the Court takes note that my colleague, Judge Corbett, had granted claimant the opportunity to obtain counsel in order to assure that his legal interests would be fully protected. The Court also notes that following claimant's retention of counsel, this Court had found sufficient merit in claimant's late claim application to permit him to assert a new cause of action sounding in negligence. It would therefore defeat the whole purpose of that prior late claim application were this Court to now deny claimant an opportunity to present and prove his amended claim.

Furthermore, even if this Court dismissed the amended claim for improper service, since jurisdiction has already been established against the State in the original claim, the defendant would still remain obligated to defend such claim.

Accordingly, even though the Court is dismayed that claimant, through his attorneys, did not fully comply with its prior order, by their failure to properly serve defendant as expressly set forth in said order, it does not believe that claimant should be unduly punished by the actions of his counsel. Therefore, in order to insure complete justice to the claimant, and since no substantial rights of the defendant will be compromised, the Court hereby expands the time for the technical compliance with its prior order permitting the service and filing of an amended claim.

It is therefore

ORDERED, that Motion No. M-64882 is hereby DENIED; and it is further

ORDERED, that Cross-Motion No. CM-65025 is hereby GRANTED, to the extent provided herein; and it is further

ORDERED, that claimant is hereby directed to serve his amended claim upon the Attorney General, by a method of service as expressly required in the prior decision and order of this Court dated December 10, 2001, and filed on December 24, 2001, within 30 days from the filing date of this decision and order. The Clerk is directed to serve the order herein upon the parties.

September 24, 2002
Syracuse, New York

Judge of the Court of Claims